JUDGMENT : M.K. Hanjura, J. 1. This judgment shall dispose of a Civil 2nd Appeal filed by the appellants (defendants in the main suit) against the judgment and decree, dated 26th of November, 2012, of the learned District Judge, Leh, whereby, while setting aside the judgment dated 11th of October, 2008, passed by the Court of learned Sub-Judge, Leh, the 1st Appellant Court has decreed the suit filed by the plaintiffs/Respondent Nos. 1 and 2 herein. 2. The background facts of the case, put in a nutshell, are that the plaintiffs/Respondent Nos. 1 and 2 herein filed a suit against the appellants before the Court of learned Sub Judge, Leh, seeking declaration and partition in respect of the land measuring 79 Kanals and 4 Marias covered under Khewat No. 32 as per the annual record of the year 1991 Bikirmi (68 Kanals and 18 Marias under khewat No. 43 and also 9 kanals and 14 Marias under khewat No. 02) as ownership land and land measuring 23 Kanals and 4 Marias comprising of Khewat No. 02, as tenancy land, situate at village Likir, Leh, Ladakh. 3. In the suit, the plaintiffs/Respondent Nos. 1 & 2 herein, pleaded that they are entitled to 1/2 share of the total property in question. They demanded the partition of the suit property as also a direction to handover their shares to them. It is stated that the defendants/appellants herein failed to do so and even denied the title of the plaintiffs in the suit property. It is further pleaded in the plaint that the defendants/appellants herein are in the unlawful possession of the suit property and although they were asked to partition the suit property, yet they failed to do so which constrained them to file the suit. The plaintiffs/respondent Nos. 1 and 2 herein have given the pedigree table in the plaint. 4. The defendant Nos. 1 and 2 appellants herein resisted and controverted the pleadings of the plaintiffs/Respondent Nos. 1 and 2 herein in their written statement filed in answer to the plaint. They took a number of preliminary objections, including the one that the suit is recklessly time barred. They pleaded that the plaintiffs/Respondent Nos. 1 and 2 herein have no right in the suit property and, as such, they are not entitled to any relief. 1 and 2 herein in their written statement filed in answer to the plaint. They took a number of preliminary objections, including the one that the suit is recklessly time barred. They pleaded that the plaintiffs/Respondent Nos. 1 and 2 herein have no right in the suit property and, as such, they are not entitled to any relief. They also pleaded that, the suit land is not a joint property but it is a separate property of the defendants No. 1 and 2. Sonam Morup the father of the defendant No. 1 and the grandfather of defendant No. 2 being eldest sons of Tsering Morup, inherited all the property of Tsering Morup as per the local custom of Leh whereby the eldest son is entitled to inherit all the property. Tsering Dolma and Phunchuk Yangzom who were daughters of Tsering Morup did not inherit the property since they were given sufficient properties during their marriage as per local custom. The other sons of Tsering Morup including the plaintiffs did not have any right to inherit the property in view of the local custom. It is further stated that plaintiffs No. 1 and 2 demanded their share in the suit property some 15 years back, but defendant 1 and 2 denied any right, title or interest of the plaintiffs in the suit property. 5. Vide order dated 29th of June, 2002, of the learned trial Court, the following issues were framed in the suit: 1. Whether the suit property is undivided property of joint family? .....OPP 2. If issue No. 1 is proved in affirmative, plaintiffs are un-recorded co-shares of the suit property and they are entitled 1/2 share of the property?.....OPP 3. Whether the defendants grandfather being elder brother of the parties have got property according to local custom prevalent at that time?.....OPD 4. Whether the suit is time barred? ....OPD 5. Relief? 6. By order dated 24th of August, 2006, the learned trial Court framed an additional issue, which reads as under: "4-A. Whether defendant No. 1 and 2 have become owners of the suit land by adverse possession on account of their possession over the suit land for the last 20 years." After hearing the parties, the learned trial Court, in terms of judgment dated 11th of October, 2008, dismissed the suit of the plaintiffs/Respondent Nos. 1 and 2 herein by holding that on the affirmative decision on issue No. 1 plaintiffs become the co-sharers and unrecorded co-owners in the suit land to the extent of 1/4th share each for the reason that Sonam Morup had four sons who survived him after his death. However since decision on issue No. 4-A does not favour plaintiffs, and plaintiffs having lost their right in the suit land by adverse possession, to defendants, No. 1 and 2 as such plaintiffs would not get any share from the defendants. Plaintiffs are dis-entitled from any share in the suit land. Accordingly Issue No. 2 is also decided against the plaintiffs. Since decision on material Issues has gone against the plaintiffs and they having failed to prove their entitlement to the relief claimed in the suit as such no relief can be granted to the plaintiffs in this suit and accordingly the suit of the plaintiffs is dismissed. 7. Aggrieved by the judgment of the learned trial Court, the plaintiffs/Respondent Nos. 1 and 2, assailed the same in an appeal filed before the Court of learned District Judge, Leh, and the said Court reversed the findings of the learned trial Court and decreed the suit of the plaintiffs/Respondent Nos. 1 and 2 herein, in their favour vide judgment and decree dated 26th of November, 2012, by concluding that the denial and ouster of appellant of the suit property must have been to the knowledge to the one and all, meaning thereby that the possession of appellant/respondents 1 and 2 qua the suit land ought to have been Necvi, Neclam and Necprecario i.e., it must be actual, visible, exclusive, hostile and continued for over statutory period which is not the case herein. The respondent 1 and 2 were not able to produce any material to show that they had perfected the title qua the suit land by-way of hostile or exclusive possession. The ouster of appellants from the suit land too has remained not conclusively proved. Hence, the trial judge committed an error in deciding issue No. 4 and 4-A in favour of respondents, which ought to have been decided in favour of the appellants having regard to the fact that issue No. 1, 2 and 3 stood decided in favour of the appellants. Hence, the trial judge committed an error in deciding issue No. 4 and 4-A in favour of respondents, which ought to have been decided in favour of the appellants having regard to the fact that issue No. 1, 2 and 3 stood decided in favour of the appellants. Coming to the cross-objections laid by respondents 4 to 6, 8 to 12, out of whom respondents 4 to 6 are the heirs of the deceased Punchok Rabeyas who was one of the sons of the common ancestor Tsering Morup, are co-sharers in the suit land. Both appellants and contesting respondents had taken the plea that the two sisters at the time of marriage had been given due share of the property, thus they had surrendered their rights in favour of their brothers. However, during the trial no such evidence had been led to bring home such plea. Being the daughters of the deceased Tsering Morup they had acquired indefensible right to have a share out of the property of their father and since no wavier on their part qua the suit property had ever been proved, thus, there was no material before the learned trial Court to, have held that the daughters of Sonam Morup were not entitled to inherit the property of their father. To that extent the finding recorded by the trial judge in issue No. 1 is set aside. 8. Heard and considered the material on record including the memo of appeal. 9. Section 100 CPC (substituted by Act No. 11 of 1983), provides that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section 3 of the section 100 provides that in an appeal under this section, the memorandum of the appeal shall precisely state the substantial question of law involved in the appeal. Sub-section 4 states that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section 5 stipulates that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Sub-section 5 stipulates that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Section 100 supra, makes it abundantly clear that the second appeal cannot be admitted to hearing unless the Court is satisfied that a substantial question of law has been raised in it for adjudication by the Court. 10. Testing the instance case on the above parameters what requires to be seen is whether, or not, a substantial question of law is involved in this case that requires to be determined by the Court. In this perspective, it has to be understood, at first, as to what the term "substantial question of law" conveys and what is its connotation. The answer to it is provided in the law laid down by the Supreme Court in the case of "Santosh Hazari v. Purushhottam Tiwari", reported in " AIR 2001 SC 965 ", paragraph Nos. 12 and 14 of which assume significance herein this appeal and are, therefore, reproduced below, word for word and letter for letter: "12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial as qualifying 'question of law', means-of having substance essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general Importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172 the phrase 'substantial; question of law' as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v. Mehta & Sons Ltd. v. Century pinning and Manufacturing Co. Ltd., [1962 Supp (3) SCR 549: AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, ILR [1952] Madras 264; [AIR 1951 Madras 969] (at p. 1318; para 5 of AIR): ......When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law" and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial (at p. 1318 para 6 of AIR): "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or by the privy council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to well settled and there is a mere question of raised is palpably absurd the question would not be substantial question of law." "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the rights of the parties before it are concerned. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the first time before the High Court is not a question involved in the case unless it goes depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 11. In this 2nd appeal, the appellants/plaintiffs have raised five questions which according to them fall within the ambit and scope of the definition of "the substantial questions of law" when applied to the facts and circumstances of the instant case. Per Contra, the learned counsel for the respondents/defendants has stated that no debatable question of law is involved in the case. The questions of law framed herein this appeal read as under: "1. Whether the plaintiffs (respondents 1 & 2) were entitled to proceed with their suit without claiming exemption from limitation, as is provided under Order 7 Rule 6 read with Rule 11(d) of CPC when the suit on the face of it was time barred under the statute of limitation? 2. Whether the Court had any option of not dismissing the suit by rejecting the plaint in view of order 7 Rule 11(d)? 3. Whether order 7 Rule 6 and Rule 11(d) are mandatory? 4. Whether a Court has jurisdiction to entertain much less decree a suit, which is barred by limitation? 5. Whether the 1st Appellate Court had jurisdiction to set aside the finding on issue No. 4 contrary to law laid down by Hon'ble Supreme Court and without any evidence?" 12. 3. Whether order 7 Rule 6 and Rule 11(d) are mandatory? 4. Whether a Court has jurisdiction to entertain much less decree a suit, which is barred by limitation? 5. Whether the 1st Appellate Court had jurisdiction to set aside the finding on issue No. 4 contrary to law laid down by Hon'ble Supreme Court and without any evidence?" 12. The above questions emerge on the basis of a foundation laid in the pleadings and these evolve from the sustainable findings of fact and law arrived by the Court and require to be decided necessarily for a just and proper decision of the case. The pith and core of the judgment of the learned trial Court is that the plaintiffs having lost their right in the suit land by adverse possession as such they would not get any share in the suit land. Therefore, the question that arises for consideration is, whether under the facts and circumstances of the case, the issue of limitation framed in this suit could be determined to the exclusion of the oral evidence or to put it in other words whether a mixed question of fact and law or a pure question of law as could be determined at its every threshold has been raised in the case. 13. What needs must be said is that Sonam Morup the father of defendant No. 1 and the grandfather of defendant No. 2 being eldest sons of Tsering Morup, inherited all the property of Tsering Morup as per the local custom of Leh. Tsering Dolma and Phunchuk Yangzom who were the daughters of Tsering Morup did not inherit the property since they were given sufficient properties during their marriage as per local custom which is the case set up by both the parties and they have not joined any issue with the parties as both of them have been set ex-parte. The remaining sons of Tsering Morup including the plaintiffs did not have any right to inherit the property in view of the local custom. It is further stated that the plaintiffs No. 1 and 2 demanded their share in the suit property some 15 years back, but defendant 1 and 2 denied any right, title or interest of the plaintiffs in the suit property. The defendants have also taken umbrage under the plea that the suit is barred by limitation. 14. It is further stated that the plaintiffs No. 1 and 2 demanded their share in the suit property some 15 years back, but defendant 1 and 2 denied any right, title or interest of the plaintiffs in the suit property. The defendants have also taken umbrage under the plea that the suit is barred by limitation. 14. The Ladakh Buddhist Property Act 1943 A.D. (hereinafter called the Act), received the assent of His Highness the Maharaja Bahadur on 26th November, 1943/11th Maghar, 2000 and it was published in the Government Gazette on 14th Mag, 2000/27th January, 1944. Prior to the promulgation of this Act, the Buddhists were governed by custom in the matter of succession in absence of any codified law. Chapter 14 of the History of Tibet, written by Mr. A.R. Khan, running under the head "Customs and Traditions of Buddhists", stipulates that the eldest son of a Bodh had the right to succeed to the estate of his deceased father and in the absence of his son, the eldest daughter had the right to succeed him as his heir apparent with a rider that she had to stay in her father's house after her marriage as otherwise she would lose her right of inheritance. So, in order to succeed to the property of the deceased, the daughter had to live in the house of her father as a matter of compulsion. In case the daughter would leave the dwelling house of her father so as to reside with her husband at a place other than her father's house, the eldest daughter amongst the unmarried ones would inherit the property of her father. By virtue of this custom as was prevalent in the Ladakh region at the lime of the death, the estate of the deceased devolved upon his eldest son and, accordingly, being the eldest son of the deceased, succeeded to his estate to the exclusion of the sisters. The pleadings of the parties do not spell out the date of the death. Section 3 of the Act, which assumes significance here is reproduced below word for word and letter for letter: "3. The pleadings of the parties do not spell out the date of the death. Section 3 of the Act, which assumes significance here is reproduced below word for word and letter for letter: "3. Right of all sons to succeed in equal shares.-On the death of a Buddhist his property, where he leaves more than one son, shall, notwithstanding any law or custom to the contrary but subject to any valid disposition thereof which he may have made during his lifetime, be inherited by all his sons in equal shares: Provided that sons, sons of pre-deceased sons, and sons of predeceased sons of predeceased sons, shall inherit per stripes that is to say, the sons of a pre-deceased son shall take the share which would have been taken by him, and likewise the grandsons of a pre-deceased son shall take the share which their father would have taken." 15. From a bare glimpse of section 3, (supra) what comes to the fore is that after the Act came into force the estate of a Buddhist on his death would devolve on his sons, to the exclusion of his daughters, notwithstanding any law or custom to the contrary. The learned 1st appellate Court and the learned trial Court have returned contradictory findings to determine the rights of the parties. The view taken by the learned trial Court appears to be apparently correct inasmuch as after taking a cue from a catena of judicial pronouncements the learned trial Court has held that:- "Now the last question for the consideration of this Court is whether in view of the fact that some portion of land is in possession of defendant No. 1, is there as an exclusive possession of the defendants and is the ouster of plaintiffs from the suit land complete so as to term it as adverse possession of defendants over the shares of plaintiffs? To my mind possession of the plaintiff No. 1 over small portion of suit land is of no consequence for the reason that remaining land is occupied by the defendants with an intention to occupy it as complete owners and in total exclusion of plaintiffs. Even the intention of defendants is materialized by reaping the fruits themselves and denying any right to plaintiffs. Exclusivity of the possession of defendants is not affected by the possession of plaintiff No. 1 over a small portion of suit land. Even the intention of defendants is materialized by reaping the fruits themselves and denying any right to plaintiffs. Exclusivity of the possession of defendants is not affected by the possession of plaintiff No. 1 over a small portion of suit land. Exclusivity lies in the fact that whatever land defendants are occupying they are in a position to affect their complete control as against anybody else including the plaintiffs. Same is the case with the completeness of ouster. Ouster can be termed as complete when the ousted party is not in a position to have any say in the matters relating to the land from where the ouster is sought. Plaintiff No. 1 may be having control over the portion of land occupied by him, but he is not in a position to affect the user of suit land and to Control the use of land by the defendants in any manner. Therefore, ouster of plaintiffs from suit land is complete and continuous for a considerable period of time at least for more than 20 years. As it appears from the evidence on record, right to sue accrued to the plaintiffs at the time of declaration of defendants to deny the title and right of plaintiffs over the suit land. This happened come where in the year 1985 when plaintiffs sent Phunchok Namgail and Lobzang Tsetan to defendants to demand their share in the suit land and defendants clearly and in unambiguous terms refused to partition the suit land and to hand over the shares of plaintiffs to them. Plaintiffs right to reclaim the shares in suit land got defeated 12 years thereafter. During that period plaintiffs could move the Court to effect partition and separation of their shares in the suit land. By efflux of time and defendants having perfected their title over whole of the suit land, plaintiffs have lost the right as well as the remedy to seek any right." 16. The appellants/plaintiffs, who were in a deep slumber, filed the suit after a period of more than 20 years from the date the suit property devolved upon the defendants. By efflux of time and defendants having perfected their title over whole of the suit land, plaintiffs have lost the right as well as the remedy to seek any right." 16. The appellants/plaintiffs, who were in a deep slumber, filed the suit after a period of more than 20 years from the date the suit property devolved upon the defendants. The possession of the defendants or their predecessor-in-interest over the suit land has never been disturbed as is brought to the fruition from the pleadings of the defendants and the documents in the shape of the annual record and the extract of Girdawari of the year 1990-91 placed on record by none other than the plaintiffs themselves which show and depict the suit land to be in the possession of the defendants as owners. Sub-Section (1) of Section 3 of the Limitation Act, provides as under: "3. Dismissal of suits, etc., instituted, etc. after period of limitation-Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence. Explanation:-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being would up by the Court, when the claimant first sends in his claim to the official liquidator." 17. The sum and substance of Section 3 of the Limitation Act, is that if and when the suit is expressly barred by the law of limitation, the Court has no choice but to dismiss the same irrespective of whether the respondents/defendants have or have not raised such a plea. Section 3 places a statutory duty on the courts to see and examine whether the suit has been filed within or beyond the period of limitation. Order 7 Rule 6 of the C.P.C., provides that where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. The underlining object in framing section 3 of the limitation. Order 7 Rule 6 of the C.P.C., provides that where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. The underlining object in framing section 3 of the limitation. Act, and Order 7 Rule 6 C.P.C., is that whenever a suit is ex-facie, barred by limitation, it is necessary for the respondents/plaintiffs, to exhibit and indicate as to how the suit is saved from the operation of the law of limitation. This had to be explained and made known by the respondents/plaintiffs at the time of commencement of the suit, to claim the right to seek the possession and partition of the suit land and to enforce their right in the suit property. They had to discharge the burden to prove so, where after the onus would shift to the other side to prove that the suit is not within the period of limitation. There is not even a whisper to say so in the plaint of the plaintiffs. They have not stated anywhere as to how their suit is within time. Under these circumstances of the case, the learned trial Court has rightly held that the plaintiffs have filed the suit after a great deal of time. Succession in this case opened upon the death of Tsering Monup, whose property devolved solely on defendant Nos. 1 and 2 to the exclusion of the plaintiffs who, too, were his sons. 18. The respondents have taken the plea of adverse possession qua the suit land. In the case of "Md. Mohammad Ali (Dead) v. Sri Jadish Kalita & Ors." reported in "2004 (1) SCC 271", it has been settled that the possession of property by a co-owner is deemed to be possession on behalf of the other co-sharers unless it is established that the possession of co-owner is in denial of title of co-owner and the possession is hostile to the co-owner by exclusion of them. There has to be an open denial of title to the party who is entitled to it by excluding and ousting them. Whenever a plea of adverse possession is taken, it has to be from the date from which the plaintiff claims adverse possession and when it was perfected has to be mentioned categorically and specifically. There has to be an open denial of title to the party who is entitled to it by excluding and ousting them. Whenever a plea of adverse possession is taken, it has to be from the date from which the plaintiff claims adverse possession and when it was perfected has to be mentioned categorically and specifically. This principle has been repeated and reiterated in the law laid down in the case of 2016 (3) JKJ 13 [SC] "Nagabhushanammal v. C. Chandikeswaralingam" reported in "2016 AIR SC 1134". The plaintiff Panchok Namgiyal has in unequivocal terms stated in his statement that when the suit property devolved on Sonum Morup, he and his brother were tender in age at that point of time. On the date of the recording his statement, i.e., 21.10.2010, he has put his age at 85 years. The suit has been instituted in the year 2000. It is also stated by him that the defendants sold a major chunk of the suit land and he did not enquire about it. He has further stated that when the suit land was entered in the records in the name of the other defendants, he did not object to it, meaning thereby that the plaintiffs slept over the matter for all these years and the possession of the defendants over the suit land was actual, visible, exclusive, hostile and to the complete knowledge of the plaintiffs for a long period. As per the import of Article 127 of the limitation Act, a suit to enforce the right of share in a joint family property has to be filed within a period of 12 years, which has not been done by the respondents/plaintiffs herein this case. Therefore, the suit of the respondents/plaintiffs entails dismissed. 19. The law is that although the right of a co-sharer to get a joint property partitioned gives rise to a recurring cause of action in view of the judgment delivered by the Hon'ble High Court of J & K in the case of "Vinod Kumar v. Lalit Kumar" reported in " 2011 (1) JKJ 545 [HC]", yet it is also a settled law that the cause of action in such cases subsists only so long as the property is held jointly. When the property of the deceased has been inherited by one of his legal heirs and mutation of inheritance has been attested in his favour, it ceases to be a joint property. If the other legal heirs are aggrieved of the attestation of mutation of inheritance to their exclusion, it is at that point of time that the cause of action arises in their favour. They cannot sleep over their rights for decades together and, thereafter, come up with a suit for partition. The question of succession as regards the estate of a person opens at the time when he dies. When the succession as regards the estate of the deceased has been settled, it is not open to challenge the same after more than two decades. This conclusion is based on the firm foundations of the law and the facts applied to the case. The respondents/plaintiffs, seek possession and partition of the estate of the deceased. They had to file the suit within the period detailed above. It is not their case that they were ever in the possession of the suit land. 20. The cumulative effect of all that has been said and done above is that there is no error in the judgment and decree of the learned trial Court. It is lucid and clear. It does not call for any interference. The conclusions derived are reasonable, logical and based on the canons of law. Therefore, the judgment and the decree of the learned trial Court is upheld, though on a different reasoning, as a corollary to which, the judgment and decree of the 1st Appellate Court is set aside. Accordingly, the appeal of the appellants/defendants is allowed and shall be consigned to records after due completion. 21. The record of the trial court shall be remitted back forthwith.